San Diego County v. Milotz

• Decision Date: 22 June 1953
• Docket Number: No. 179948,179948
• Citation: 119 Cal.App.2d Supp. 871,260 P.2d 282
• Court: California Superior Court
• Parties: 119 Cal.App.2d Supp. 871 SAN DIEGO COUNTY v. MILOTZ et al. Appellate Department, Superior Court, San Diego County, California

Page 282

260 P.2d 282

119 Cal.App.2d Supp. 871

SAN DIEGO COUNTY v. MILOTZ et al.

No. 179948.

Appellate Department, Superior Court, San Diego County, California.

June 22, 1953.

As Corrected Sept. 1, 1953.

James Don Keller, Dist. Atty., San Diego, by Duane J. Carnes, Dep. Dist. Atty., San Diego, for appellant.

Butler, Kaminar & Sorbo, San Diego, by Myron Kaminar, San Diego, for respondent W. F. Milotz, Jr.

James B. Abbey, San Diego, for respondent J. C. Perrigo.

GLEN, Judge.

Plaintiff seeks to recover from defendant Milotz and from J. C. Perrigo, county auditor, and his bondsmen, reporter's fees alleged to have been illegally allowed by the county auditor and received by Milotz contrary to section 869, Penal Code.

The amended complaint alleges an indebtedness of $1852.30 to the County of San Diego '* * * for and on account of moneys paid out upon County warrants issued by defendant J. C. Perrigo to defendant W. F. Milotz, Jr., without authorization of law and in violation of the provisions of Section 869 of the Penal Code requiring * * * reduction of compensation by one-half for failure to transcribe, certify and file transcripts upon preliminary examinations in felony cases, together with affidavits as provided in said section within the time provided therein. That an additional sum of twenty (20) per cent, or $370.46, is due plaintiff under the provisions of Government Code Section 26525 as damages for the use of said money.'

The several defendants each filed general demurrers to the second amended complaint which were sustained without leave to amend. The county appeals from the judgment entered thereon.

In their briefs, the parties have devoted their energies entirely to the question whether the provision of § 869, Penal Code reducing the compensation of the reporter one-half if the transcripts of preliminary examinations are not filed within the time allowed by that section is mandatory or merely directory.

Upon analysis of the pleadings and the statute under consideration, we perceive further questions that require some comment in view of our reversal of the judgment. Since the complaint specifically alleges defendant's liability arises out of payment of public funds in violation of § 869, Penal Code, and is not couched in terms of a common count without reference to the statute, the pleading must allege with particularity the precise failure to comply with the statute in order to determine the commencement of the statutory time in which transcripts must be filed.

Penal Code, § 869 sets up a complete scheme for the taking, transcribing, and filing of testimony before a magistrate in felony cases. The statute is quite lengthy and divided into seven subdivisions and must be construed as a whole. The provisions pertinent to this inquiry are as follows:

'The testimony of each witness in cases of homicide must be reduced to writing, as a deposition, by the magistrate, or under his direction, and in other cases upon the demand of the prosecuting attorney, or the defendant, or his counsel. The magistrate before whom the examination is had may, in his discretion, order the testimony and proceedings to be taken down in shorthand in all examinations herein mentioned, and for that purpose he may appoint a shorthand reporter. * * *

'Fifth--The reporter shall, within ten days after the close of such examination, if the defendant be held to answer the charge, transcribe his said shorthand notes, * * * and file both said original and copy with the county clerk of the county, or city and county, in which the defendant was examined. The reporter shall, before receiving any compensation as such reporter, file with the auditor of the county his affidavit setting forth that said transcriptions have been filed with said county clerk within the time herein provided for. The compensation of the reporter for any services rendered by him as such reporter in any court of this State shall be reduced one-half if the provisions of this section as to the time of filing said transcript have not been complied with by him. * * *

'Seventy--If said transcript is filed within the time hereinbefore provided for, the reporter shall be entitled to receive the compensation fixed and allowed by law to reporters in the superior courts of this State.' (Emphasis added.)

Except in homicide cases wherein the defendant is held to answer, the statute does not require the testimony taken at a preliminary hearing be reduced to writing and filed except upon the demand of the prosecuting attorney, or the defendant, or his counsel. Kalloch v. Superior Court, 56 Cal. 229; People v. Smith, 59 Cal. 365; People v. Brooks, 72 Cal.App.2d 657, 165 P.2d 51. In People v. Smith, supra, the defendant was charged with robbery and was held to answer without a transcript of the testimony being filed, the magistrate merely endorsing his order holding the defendant upon the complaint which he styled 'a deposition.' Upon denial of the defendant's motion to dismiss in the Superior Court he appealed. At page 366 of 59 Cal. the Supreme Court says:

'According to the provisions of the Penal Code, a person, when arrested on a charge of having committed a public offense, must be examined before a magistrate. (See Penal Code, sections 858-863.) * * *

'It is provided by Section 869, as to this examination, that 'the testimony of each witness, in cases of homicide, must be reduced to writing as a deposition, by the magistrate or under his direction, and, in other cases, upon the demand of the prosecuting attorney, or the defendant or his counsel.' The same section prescribes the manner in which the deposition shall be taken, when the testimony is in that form. This is the only requirement as to the reduction of the testimony to writing.'

In People v. Brooks, supra, defendants were convicted of burglary. They contended they had no preliminary hearing and were not represented by counsel and that there was no transcript of the proceedings filed in the superior court. At page 660 of 72 Cal.App.2d, at page 53 of 195 P.2d of the decision the court remarks:

'Nor is it necessary, except in homicide cases, that the proceedings be taken down in shorthand and transcribed by a court reporter. Sec. 869, Penal Code; People v. Williams, 129 Cal.App. 504, 19 P.2d 37. * * *

'Seemingly they [the defendants] were content to rely on the absence of a reporter's transcript of the proceedings before the committing magistrate from the files of the superior court. As this was a case in which burglary, not homicide, was charged, the presence of a reporter was not required by law so the absence of a reporter's transcript was not evidence supporting their contention that they had been committed without a preliminary examination.'

In Kalloch v. Superior Court, supra, the magistrate proceeded with the examination, and after hearing the oral statements of witnesses committed the petitioner for trial. The petitioner having been charged with murder, the information was dismissed because no transcript was prepared.

Until a defendant is held to answer, no transcript need be prepared, and if one is prepared without defendant being held to answer, the reporter is not entitled to any compensation.

In Mattingly v. Nichols, 133 Cal. 332, at page 334, 65 P. 748, at page 749, it is said:

'We think, however, that the Code does not contemplate, much less require, the shorthand notes of the reporter to be transcribed, where the accused has been discharged. Subdivision 5 of section 869 of the Penal Code provides: 'The reporter shall, within ten days after the close of such examination (if the defendant be held to answer to the charge), transcribe into longhand writing his said shorthand notes, and certify and file the same with the county clerk of the county, or city and county, in which the defendant was examined, and shall in all cases file his original notes with said clerk.' If it was the intention of the legislature to require the reporter's notes to be transcribed and filed with the original notes in cases where the accused is discharged, as well as in cases where he is held to answer, it would have been easy to say so. No distinction whatever would have been made. It is not material to inquire whether the transcribed notes could or would have been of any use. The question, as finally stated in the reply brief, is whether appellant is entitled to pay, having performed the service upon the demand of the accused and under the order of the examining magistrate. But neither the state nor the county can be charged with a liability unless it is authorized by law. No discretion is vested in the justice of the peace in the matter. His authority must be found in the statute, if he has it, and we do not find any.' (Emphasis added.)

A magistrate is a statutory official. His powers and duties are thus limited by statute. He may order a transcript written and filed only as authorized by statute. Thus in Fursdon v. County of Los Angeles, 100 Cal.App.2d Supp. 845, 223 P.2d 520, it is held:

'A judge of a municipal court, acting as a magistrate in holding a preliminary examination of a felony charge, had no authority, where defendant was not held to answer but the charge against him was dismissed, to order the phonographic reporters to make a daily transcript consisting of an original and six copies and to make such services a charge against the county.'

At page 850 of 100 Cal.App.2d Supp., at page 524 of 223 P.2d the court observes:

"This office of magistrates is purely a statutory one, 'and the powers and duties of the functionary are solely those given by statute.' (Citing cases.) Even a justice of the Supreme Court, or a judge of the superior court, if he sees fit to assume the duties of a committing magistrate, 'is not accompanied in the discharge of those functions by any of the general or implied powers * * * which surround him when sitting as a judge of a court of record.' * * *'

'From these cases we...